Spencer T. Montgomery, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency Appeal No. 01A31922 Agency No. 01-68836-002 Hearing No. 360-A2-8619X

Equal Employment Opportunity CommissionOct 23, 2003
01A31922 (E.E.O.C. Oct. 23, 2003)

01A31922

10-23-2003

Spencer T. Montgomery, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency Appeal No. 01A31922 Agency No. 01-68836-002 Hearing No. 360-A2-8619X


Spencer T. Montgomery v. Department of the Navy

01A31922

October 23, 2003

.

Spencer T. Montgomery,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency

Appeal No. 01A31922

Agency No. 01-68836-002

Hearing No. 360-A2-8619X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29

C.F.R. � 1614.405. For the following reasons, the Commission affirms

the agency's final order.

The record reveals that complainant, a Materials Expediter, WG-5,

at the agency's Fleet & Industrial Supply Center Detachment, Corpus

Christi, Texas facility, filed a formal EEO complaint on April 12, 2001.

He alleged that the agency had discriminated against him on the bases

of race (African-American), color (Black), disability ( right-side

paralysis), and reprisal for prior EEO activity when:

(1) he was suspended for 5 days for a work-related motor vehicle accident

in September 2000;

(2) he was suspended for 3 days for a safety violation in November 2000.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ).<1> Following a hearing, the AJ issued a

decision finding no discrimination.<2>

The AJ concluded that complainant did not established a prima facie

case of reprisal because he failed to show that his supervisors were

aware of his protected activity prior to taking the actions at issue.

He further found that complainant failed to establish that he was an

individual with a disability within the meaning of the Rehabilitation Act.

The AJ determined that the agency articulated legitimate,

nondiscriminatory reasons for its actions - namely that there was an

adequate basis for suspending complainant due to his actions which caused

a vehicle accident. Additionally, the AJ found that there was no showing

that employees who complainant claimed were treated more favorably when

they were disciplined for vehicular accidents, had the same supervisors

who recommended disciplinary action or the same disciplinary history as

he had.

In his consideration of the second suspension of complainant for failing

to follow safety procedures, the AJ concluded that the agency's reasons

for suspending complainant were legitimate. Although he noted that a

suspension was a harsh penalty for complainant's failure to wear a seat

belt, the AJ decided that the agency based its discipline, in part, on

complainant's history of infractions for which he had been reprimanded

or warned in the past. According to the AJ, this also adequately

explained the lesser discipline that another employee received for the

same infraction at the same time. According to the record, this employee

had not been counseled or given warnings for infractions in the past as

had complainant.

The agency's final order implemented the AJ's decision.

On appeal, complainant contends that the AJ erred because he failed to

apply the proper standard and that complainant satisfied his burden

of proof by demonstrating disparate treatment based on complainant's

membership in various protected classes. Complainant contends that

the agency failed to articulate a legitimate reason for treating him

differently than other employees outside of his protected classes, and

that the Commission should find that the agency discriminated against him.

The agency argues that the AJ's determination of no discrimination was

proper and should be upheld.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding and so, will be affirmed if supported

by substantial evidence in the record. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held, meaning

that they are reviewed anew on appeal.

After a careful review of the record, the Commission finds that the

AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision properly applied the appropriate

regulations, policies, and laws. For purposes of our review, it is

assumed that complainant is an individual with a disability as that term

is defined by the Rehabilitation Act. Even assuming that complainant

is an individual with a disability, he has not demonstrated that the

agency's suspension of him was based on his disability, his race or in

reprisal for his protected activity. Rather, the evidence reasonably

supports that complainant was suspended because he failed to take the

proper precautions to secure his vehicle when delivering packages.

Complainant acknowledged in affidavit testimony the agency's version

of events leading to the disciplinary action as true. Specifically,

complainant did not dispute that he left his vehicle running and with

the transmission in gear, while he attempted to unload a large parcel.

He further acknowledged that when the parcel contents fell out of its

container hitting the accelerator, the vehicle moved forward and struck

a power box, thereby causing damage to the vehicle. Having acknowledged

these facts, complainant did not dispute that his actions caused the

accident in question.

The testimony of agency managers indicated that in reaching the decision

about the appropriate discipline to impose, they relied on the fact that

complainant had been counseled in the past for his poor performance.

Although complainant contested the fairness of the suspension because he

claimed that others had not been similarly disciplined, he was unable

to demonstrate by a preponderance of the evidence that the agency's

discipline was based on illegal motives. Complainant testified that

he had heard others were treated more favorably when they had similar

kinds of accidents, but he did not come forward with competent evidence

to support his contention. Therefore, the Commission finds the AJ's

conclusion that the agency did not discriminate in this instance,

was reasonable.

Turning to the agency's second suspension of complainant just two months

later, for his failure to wear a seat belt while riding in an agency

vehicle, we conclude that the AJ's decision is supported by the record.

Although complainant contested the agency's basis for the suspension based

on the fact that he was wearing a seat belt, he did not come forward with

any evidence other than his own statements, to controvert the agency's

conclusion. Thus, he was unable to demonstrate by a preponderance of

the evidence, that the agency's reasons could not be believed and were a

pretext to hide discrimination. For these reasons, we conclude there is

no basis to disturb the AJ's decision, as it is supported by the record

and it is affirmed. Accordingly, we AFFIRM the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 23, 2003

__________________

Date

1The Commission noted that the responsible

management official for deciding the discipline was also the EEO official

charged with accepting the complaint, a clear conflict of interest that

the agency should have addressed. Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.1-2 (November 9, 1999).

2The AJ denied the agency's Motion for a Decision without a Hearing.